DOCKET NO. A–5728–11T4

Decided: April 15, 2014

Before Judges Messano and Hayden.Howard Z. Myerowitz argued the cause for appellants (Song Law Firm, attorneys; Mr. Myerowitz, of counsel and on the brief). Mark J. Brancato argued the cause for respondents (McHugh & Brancato, L.L.P., attorneys; Mr. Brancato, on the brief).

On September 21, 2006, fourteen-year old plaintiff Crystal Huertas was a passenger on a bus owned by defendant, New Jersey Transit, and leased and operated by defendant Community Coach Inc. (Community).1 The bus ran a red light and crashed into another vehicle, allegedly causing injuries to plaintiff's cervical spine. Her mother, plaintiff Selma Huertas, filed suit, and the matter was eventually tried before a jury.2

The record details the tortuous procedural history that preceded trial. Scheduled for September 6, 2011, trial was adjourned at the joint request of counsel to permit the filing of updated medical reports of plaintiff, who was allegedly still treating, and for defendant to take her deposition and conduct an independent medical examination.3 A trial date of November 7, 2011 was postponed at plaintiff's request because her primary treating neurologist, Dr. Rolando Sousa, was out of the country attending to his ill father. Plaintiff again requested an adjournment of the December 5 trial date because she had been unable to contact Sousa despite repeated attempts, including a visit to his offices in Hoboken and Hackensack.

On January 5, 2012, plaintiff served defendant with the report of Dr. Shan Nagendra, a neurologist who had treated plaintiff initially, but had not seen her since July 2008.4 Plaintiff previously had not served any expert report. Dr. Nagendra opined that as a result of the accident, plaintiff suffered disc herniations at C4–C5 and C5–C6, bilateral cervical radiculopathy at C5, post-traumatic headaches, and cervicogenic headaches. While he believed plaintiff's prognosis was “good,” Dr. Nagendra noted “[s]he [was] a candidate for cervical disc surgery[;] however[,] at her age[,] a minimally invasive cervical disc decompression surgery would be beneficial.” Dr. Nagendra also opined that plaintiff's “disc herniations [were] permanent and causally related to the motor vehicle accident․”

On January 12, defendant moved for an order barring Dr. Nagendra's testimony at trial. We need not recount the details of the protracted oral argument that followed, except in one critical respect.5

During argument, defense counsel specifically objected to Dr. Nagendra's reference to prospective surgery, noting this “significantly changes the landscape of the case.” Arguing there was no surprise, plaintiff's counsel noted that Dr. Nagendra's office notes had been supplied early in the litigation, before plaintiff “started treating with Dr. Sousa․” He said, “There is nothing that Dr. Nagendra is putting in his ․ report that isn't going to — all his reports [sic], that's all the medicals that were turned over early in this litigation.” At a later point, plaintiff's counsel agreed to “make an offer.”

[I]f in fact there's nothing in Dr. [Nagendra's] records that talks about the possibility that [plaintiff] would need surgery, then I would agree that that shouldn't come into the trial. I mean[,] if that's really the issue [,] ․ that they're going to be surprised by that, then I would agree that they shouldn't be surprised by that.

It suffices to say that the judge displayed an abundance of fairness in considering the unusual circumstances surrounding Sousa's disappearance. He denied defendant's request to bar Dr. Nagendra from testifying, but he agreed to bar any testimony regarding “surgery.” The judge entered an order reflecting his conclusion that the report's reference to surgery was “beyond the scope of [Dr. Nagendra's] previous notes and records.” 6

At trial, defendant conceded liability. Because N.J.S.A. 17:28–1.7 applied, plaintiff bore the burden of proving that she had suffered “a permanent injury within a reasonable degree of medical probability.” 7 Prospective jurors were questioned about their familiarity with “migraine headaches,” and some were excused based upon their answers to the court's inquiries. However, before opening statements, defense counsel moved in limine to bar any evidence regarding “migraine headaches,” since Dr. Nagendra had not used that term in his report. The judge, after consulting a well-known medical treatise, agreed that cervicogenic headaches differed from migraine headaches; nevertheless, he gave plaintiff an opportunity to produce Dr. Nagendra before opening statements to clarify whether the two terms were synonymous.8 The doctor was unavailable, so trial proceeded to opening statements and neither counsel used the term “migraine.”

Plaintiff was called as a witness and discussed the nature of her complaints, including the claim that she suffered severe headaches as a result of the accident. Dr. Nagendra was called and testified consistently with his report. He also explained that plaintiff suffered from cervicogenic headaches; he never used the term “migraines.”

During re-cross, defense counsel was about to inquire about the “good” prognosis contained in Dr. Nagendra's report. However, after an objection and at sidebar, the judge essentially determined not to revisit the motion judge's prior decision. He ruled that if defense counsel “open[ed] th[e] door” by asking about the prognosis, he would permit plaintiff's counsel to ask about the surgical recommendation. Defense counsel then indicated he would not question Dr. Nagendra about the prognosis.

Dr. Decter testified as the only defense witness. He opined that plaintiff had not suffered any permanent injuries to her cervical spine.

The jury determined that plaintiff had not suffered a permanent injury proximately caused by the accident. The court entered an order for judgment in favor of defendant on March 28, 2012. This appeal followed.

Before us, plaintiff argues that it was error to bar Dr. Nagendra from testifying about his surgical recommendation. She also contends it was error to bar Dr. Nagendra from using the term “migraine headaches,” and that jury selection was tainted because, during the voir dire, jurors were asked about their knowledge of, or experience with, migraine headaches. Having considered these arguments in light of the record and applicable legal standards, we affirm.

Initially, we note our standard of review. “In reviewing a trial court's evidential ruling, an appellate court is limited to examining the decision for abuse of discretion.” Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008) (citation omitted). “[T]he latitude initially afforded to the trial court in making a decision on the admissibility of evidence—one that is entrusted to the exercise of sound discretion—requires that appellate review, in equal measures, generously sustain that decision, provided it is supported by credible evidence in the record.” Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 384 (2010).

We conclude that it was not error to bar testimony regarding migraine headaches. The trial judge appropriately considered the issue, and we find no mistaken exercise of the judge's broad discretion on this point. Simply put, Dr. Nagendra did not use the term in his report or his testimony. Likewise, plaintiff's claim that the voir dire of prospective jurors regarding their familiarity with migraine headaches tainted jury selection lacks sufficient merit to warrant discussion in a written opinion. R. 2:11–3(e)(1)(E).

We also reject plaintiff's argument that it was error to foreclose Dr. Nagendra from testifying about possible surgery. We need not address the obvious violations of the discovery rules committed when, without formal motion, a party serves her first expert report days before trial and after several trial dates were adjourned. It suffices to say that any error made in admitting Dr. Nagendra's report but barring its reference to surgery was clearly invited by plaintiff.

“The doctrine of invited error operates to bar a disappointed litigant from arguing on appeal that an adverse decision below was the product of error, when that party urged the lower court to adopt the proposition now alleged to be error.” Brett v. Great Am. Rec., 144 N.J. 479, 503 (1996). “[W]here error was advanced to secure a tactical advantage at trial, the party responsible will not be permitted to complain on appeal.” Ibid.

During oral argument on defendant's motion to bar Dr. Nagendra's report, plaintiff agreed that she would not introduce evidence about the surgery if it was not previously mentioned in the doctor's notes and reports. She agreed that introducing evidence of the surgical recommendation at such late date would unfairly “surprise” defendant. That concession was critical to the motion judge's decision to permit Dr. Nagendra to testify at all. Although the appellate record does not contain copies of Dr. Nagendra's reports, plaintiff seemingly concedes in her brief that “there was no recommendation for surgery in Dr. Nagendra's original medical records.” Having agreed to exclude any mention of surgery if it was not contained in the original

reports and notes, plaintiff cannot now complain that the decision by the motion judge, essentially followed by the trial judge, was reversible error.